BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
MANY questions are being asked about the latest bombshell announced by the US attorney general and the FBI. They have initiated action to seize the assets acquired by using money stolen from the people of Malaysia, in particular the 1MDB Fund.
The AG has filed a “civil suit” for this purpose. And named five individuals – two Malaysians and three foreigners. Others – code-named – have also been indirectly implicated.
What is this suit about? Why civil and not criminal? What gives the US the right to bring this action? And can they haul up people who are not US citizens or living in the US?
As a result of worldwide clamour, the US launched a 2010 initiative to recover the proceeds of corruption (and money laundering) that are either held in the United States or moved through the United States. It is known as the Kleptocracy Asset Recovery Initiative. (“Kleptocracy” is a Greek word meaning “The rule of thieves”). The assets to be recovered could be money in banks or property bought with the stolen money.
According to the initiative, these assets can be seized after a criminal conviction. The easier pathway, however, is to move to confiscate the assets without waiting for a conviction.
But make no mistake – it is based on the criminal conduct of those identified as the thieves. Thieves have been known to dissipate their ill-gotten gains swiftly. To prevent that from happening, the US attorney-general can initiate proceedings – called “Non-Conviction Based (NCB) confiscation” – which is exactly what she is now doing.
To summarise, such a civil action is to recover property that has been acquired as a result of criminal conduct; rather than a direct criminal charge against the persons committing the crime. And the courts don’t have to wait for them to be convicted to “save” the properties.
According to the US Department of Justice (Criminal Division, Asset Forfeiture and Money Laundering Section), such actions can be particularly useful in cases where a criminal conviction may not be possible – as when the thieves cannot be traced (fugitives) or are not available for prosecution – as when they are not subject to US jurisdiction or claim immunity.
The US attorney-general has indicated her intention to return the money to the people of Malaysia. The US-AG has the regulatory power to remit confiscated assets to victims of the underlying criminal activity upon which the confiscation was based. A procedure is prescribed for seeking the return of the assets. It is open to foreign individuals, entities, or governments.
Our Malaysian AG would be well advised to support the return of the stolen money to our country – rather than keep insisting that no wrong has been done. For this would disqualify Malaysia from recovering at least some part of the looted money.
Public perception queries how Malaysia’s several investigations could find no wrongdoing when the US investigations have been able to provide in-depth details of how 1MDB money was diverted to fund lavish parties, gambling, a movie production, and purchases of a jet plane, hotels, cars, paintings and luxury apartments. As well as make “gifts” of millions and perhaps billions. What went wrong?
Malaysia’s AG’s statement that ” … to date, there has been no evidence from any investigation conducted by any law enforcement agencies in various jurisdictions which shows that money has been misappropriated from 1MDB,” ignores the massive evidence in the US investigations.
Will the AG now accept that there is enough prima facie evidentiary basis to bring criminal charges against the perpetrators?
Amid all this, comes the welcome PM’s assurance to “cooperate fully” with the US investigations (which are still on-going – to trace more properties and nail the thieves). Of course anybody alleged to be a thief has the right to have his day in court to prove that his assets were not traceable to 1MDB monies.
What now the role of our government in relation to the US suit to recover our stolen loot? Sit back and wait for due process; or join the US initiative proactively for asset recovery?
What signal do we send to our citizens and the world? That we support corrupt officials, their associates, friends or relatives and condone them keeping the illicit proceeds of their corruption?
There is no gentle way to say it, said the US attorney-general at the 2009 Doha Global Forum IV: “When kleptocrats loot their nations’ treasuries, steal natural resources, and embezzle development aid, they condemn their nations’ children to starvation and disease. In the face of this manifest injustice, asset recovery is a global imperative.”
May not be quite a question of starvation and disease. But surely, a serious impairment of our country’s development, well-being and image.
Gurdial a former law professor and Deputy President of HAKAM, believes in a fair and open debate on issues that may impact people’s lives.